I dissent.
The majority opinion holds that the trial court abused its discretion in making an award of temporary alimony, counsel fees and costs, and therefore reverses the trial court’s order. I cannot agree with the reasoning or the result reached in that opinion.
The undisputed facts may be briefly stated. It appears that this is the second divorce action instituted by the plaintiff husband against defendant, and that it was filed before there had been a determination in the first divorce action that he was not entitled to a divorce. The defendant wife filed an answer and cross-complaint, and sought temporary alimony and suit money. It also appears that the wife had brought a prior action to set aside two property settlement agreements which had been signed by the parties. That action was consolidated for trial with the first divorce action and had resulted in a judgment of the trial court upholding the validity of said agreements. The wife promptly appealed, and that appeal was still pending and undetermined when the challenged order herein was made.
In addition to the foregoing facts, which were before the trial court on the hearing, it appeared without conflict that *527the wife was then entirely without funds; that she had no property; that she was ill and unable to work; that the husband had an income of approximately $450 or more per month from a cafe and other properties; and that the total sum which the wife had received from the husband under the disputed property settlement agreements was but $750, in consideration of which she had waived all property rights or claims for financial assistance. The husband introduced no evidence except evidence of the property settlement agreements, and evidence concerning the prior action in which the validity of the agreements had been put in issue, and in which action the wife’s appeal was still pending. Upon this showing, the trial court made its order awarding to the wife $100 per month as temporary alimony, $100 as counsel fees, and $10 as costs.
It is my opinion, first, that the trial court had the power, at least until the judgment in the prior action had become final, to make an order awarding temporary alimony and attorney’s fees and costs; and second, that if the trial court had the power to make any order for temporary alimony and suit money, it did not abuse its discretion in making an order awarding the amounts above mentioned.
When the validity of a property settlement agreement is put in issue in a divorce action, there is no question concerning the power of the trial court to award temporary alimony and suit money in that action, regardless of any provisions of such agreement waiving financial assistance, until such time as the validity of the agreement may be determined. (Locke Paddon v. Locke Paddon, 194 Cal. 73 [227 P. 715]; Steinmetz v. Steinmetz, 67 Cal.App. 195 [227 P. 713].) Here the validity of the property settlement agreements had been put in issue in a separate action, but an appeal was pending in that action and the issue raised therein had not been finally determined when the order in question was made. The rationale of the cited cases, however, clearly indicates that the trial court should be held to have had such power until such final determination. It is clear that until the prior judgment became final, the doctrine of res judicata was not applicable. (15 Cal.Jur. 121, and cases cited.)
As I read the majority opinion, it does not deny the existence of the power of the trial court but it points out that the wife did not raise the issue of invalidity of the agreements in this divorce action, did not present proof of invalidity at the time of the hearing of her application, and did not object *528to the introduction of the evidence of the agreements or of the prior judgment. It therefore concludes that “Under these circumstances, the trial court abused its discretion in refusing to consider the effect of these agreements as evidence bearing upon the wife’s right to support and in making an order for alimony and counsel fees regardless of their validity.” In other words, abuse of discretion “under the circumstances” is the basis of the majority opinion, rather than lack of power. But I find no circumstances which would warrant the conclusion that the trial court abused its discretion.
It indisputably appears that the wife had attacked and, by appeal, was continuing to attack the validity of those agreements in a separate action brought for that purpose. She was neither required nor should she be permitted in this divorce action to relitigate the same issue. It was therefore not incumbent upon her, or proper for her, to plead or prove in this action such invalidity, which was the sole issue in the separate action. She did properly show, however, that she had attacked the agreements in the separate action, and that an appeal was pending therein, and this was a sufficient showing to require the trial court to hear her application and to exercise its discretion in determining whether, in view of all the circumstances, it should be granted, and, if so, in what amount. Among those circumstances, of course, was the fact of the existence of said agreements and the fact of the pend-ency of the separate action challenging their validity. No significance can therefore be attached to the wife’s failure to object to the introduction of evidence concerning the existence of said agreements or concerning the pendency of the other action. Such evidence was material in order to apprize the court of the entire situation, and any objection to the introduction of such evidence would have been properly overruled. Furthermore, it is not correct to say, as does the majority opinion, that “She made no claim that these agreements were not binding upon her.” If this were true, the reliance by the majority opinion on the ease of Majors v. Majors, 70 Cal.App.2d 619 [161 P.2d 494], might be justified. That case arose upon an appeal from a judgment on the merits on all issues, including an award of permanent support, in a case where the plaintiff wife had sought approval of the property settlement agreement and had testified that she was satisfied with it. But here it appeared that the wife was wholly dissatisfied and had brought a separate action, which was still pending and not finally determined, claiming *529that the agreements should be set aside because of fraud and of failure of consideration. It is difficult to see how the wife could have more effectively “made [the] claim that these agreements were not binding upon her.” If it is the theory of the majority opinion or concurring opinion that the issue of invalidity of a property settlement agreement must be not only raised but also proved upon an application for temporary alimony, such view appears unsound and it is contrary to the views expressed in Locke Paddon v. Locke Paddon, supra, 194 Cal. 73, 81.
Appellant stated in his petition for hearing herein that “there is squarely presented the question as to whether the Superior Court in the divorce action possessed the power” to award temporary alimony and suit money in view of the agreements of the parties and the judgment of the superior court in the other action which was then on appeal. The majority opinion, however, appears to treat the case as one involving the question of abuse of discretion in the exercise of a conceded power, such abuse consisting of “refusing to consider the effect of these agreements as evidence bearing upon the wife’s right to support and in making an order for alimony and counsel fees regardless of their validity.” Such alleged refusal is based upon the following circumstance: after hearing the undisputed evidence of the wife’s physical and financial distress, of the two property settlement agreements under which the wife had previously received but $750 in consideration of her waiver of all property rights and rights to financial assistance, of the two prior actions between the parties and the pendency of the appeal in the action involving the validity of the agreements, the trial judge said: “I don’t care anything about these documents, but I will make an order for the support of this woman pending the hearing of the divorce action.” Such remark may reasonably be construed to mean that the trial court, after considering all the evidence, did not feel bound by the terms of said agreements but, on the contrary, did feel that, despite the existence of such agreements, it should exercise its discretion and make some award to permit the wife to defend this second divorce action instituted against her by the husband. The record does not bear out the statement that the trial court either refused or failed to consider any of the evidence before it, and to attempt to use the above mentioned remark as the basis for indicating that it did furnishes frail ground for the reversal of what appears to me to be a wholly reasonable order for temporary support *530and suit money made by the trial court within its power and in the exercise of a sound discretion under the circumstances.
It is stated in the majority opinion that the wife’s appeal in the other action “was dismissed for lack of prosecution and the determination is now final. ’ ’ That fact, if it be a fact, does not appear from the record herein. In the husband’s petition for hearing in this court, it is stated: “The wife has appealed from that judgment and that appeal is now pending. ’ ’ But in any event, the propriety of the trial court’s order must be determined in view of the circumstances existing at the time of its entry, and it is conceded that the wife’s appeal in the other action was then pending and that it remained undetermined for some time thereafter.
I am of the view that the order should be affirmed.
Traynor, J., concurred.